Andhra HC (Pre-Telangana)
Mallamma & Others vs N.Gangamma (Died) Per Lrs on 14 November, 2017
Equivalent citations: AIRONLINE 2017 HYD 58
Bench: Suresh Kumar Kait, D.V.S.S. Somayajulu
HONBLE SRI JUSTICE SURESH KUMAR KAIT AND HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
L.P.A.Nos. 194 of 2000
14-11-2017
Mallamma & others Appellants/Defendants
N.Gangamma (died) per LRs Respondents/Plaintiff
Counsel for the appellants: Sri K.K. Waghray
Counsel for the Respondents: Damodar Mundra
<Gist:
>Head Note:
? Cases referred:
(1974) 2 SCC 492
2 (2016) 3 SCC 449
3 (1995) 4 SCC 459
4 (2012) 4 SCC 387
5 (2005) 8 SCC 67
6 AIR 2009 SC 1776
7 AIR 1968 SC 1332
8 2007 AIR SC 300
9 Manu/SC/0115/1958
10. AIR 2003 SC 3109
1. AIR 1999 SC 1441
HONBLE SRI JUSTICE SURESH KUMAR KAIT
AND
HONBLE SRI JUSTICE D.V.S.S. SOMAYAJULU
LPA Nos.194 of 2000 and 14 of 2001
COMMON JUDGMENT (per Honble Sri Justice D.V.S.S. Somayajulu):
These appeals arise out of a common judgment
pronounced in CCCA Nos.14 of 1987 and 57 of 1986 dated
27.04.2000. LPA No.194 of 2000 is filed against the orders in
CCCA No.14 of 1987 and LPA No.14 of 2001 is filed against
the finding in CCCA No.57 of 1986, therefore, this Court has
decided to dispose of these appeals by this common judgment.
2. The said CCCAs arise out of two suits O.S.No.477
of 1983 and O.S.No.476 of 1983. O.S.No.476 of 1983 is a suit
filed by one Smt. Gangamma against J. Sriramulu and 6
others. The suit is filed for a declaration that she is the owner
of schedule-A to schedule-C properties being the daughter of
one Railu Patel. She also sought for a direction to deliver the
vacant possession of plaint A to C schedule properties and for
other reliefs.
3. The defendants, who are the children of the brother
of Railu Patel, have contested the suit raising various defences
of which the main defences are that the plaintiff is not the
daughter of Railu Patel and that Railu Patel also executed a
registered Will dated 11.10.1976 in a sound state of mind in
which the plaintiff is not given any share.
4. The second suit O.S.No.476 of 1983 was initially
numbered as O.S.No.587 of 1982. The said suit is filed by the
same plaintiff-Smt. Gangamma for a declaration that the Will
dated 11.10.1976 allegedly executed by late Railu Patel be
declared as null and void, inoperative and cancelled and for
other reliefs.
5. In this case, the defendants filed a written
statement contending inter alia among other things that the Will
in question is a genuine Will and it is neither fraudulent nor
fabricated. In a protracted trial in the suit Nos.477 of 1983 and
476 of 1983, 6 witnesses were examined for the plaintiff and 5
witnesses were examined for the defendants. Exs.A.1 to A.13
were marked for the plaintiff and Exs.B.1 to B.3 and B.8 to
B.29 were marked for the defendants.
6. After hearing the parties, the learned trial Judge
held by his common judgment dated 24.03.1986 that the
plaintiff-Smt. Gangamma in O.S.No.477 of 1983 is not the
daughter of late Railu Patel and dismissed the suit.
Simultaneously, the trial Judge also held that the suit
O.S.No.476 of 1983 is decreed in favour of the plaintiff and the
Will dated 11.10.1976 is declared as null and void.
7. Against the same, CCCA Nos.14 of 1987 and 57 of
1986 were filed. The learned single Judge of this High Court,
vide his common order dated 27.04.2000, dismissed the
appeal in CCCA No.14 of 1987 pertaining to O.S.No.476 of
1983. However, the learned Judge allowed the appeal in CCCA
No.57 of 1986 pertaining to O.S.No.477 of 1983 by converting
the suit into one of partition and the suit was remanded to the
Court below for the purpose of determining the shares held by
parties as tenants in common.
This common order is impugned in these LPAs.
8. Heard the counsels, Sri K.K. Waghray for the
appellants and Sri Damodar Mundra for the respondent.
Since the said two LPAs are from a common judgment of a
learned single Judge, the facts are also being looked into in the
present two LPAs. We derive support from Smt. Asha Devi v.
Dukhi Sao and another and move particularly from
B. Venkatamuni v. C.J. Ayodhya Ram Singh and others .
9. It is the admitted case of both the parties that the
properties acquired by Railu Patel are self-acquired properties.
The evidence and pleadings make it clear that the properties
are self-acquired properties.
10. The first Court initially decreed the suit O.S.No.476
of 1983 on the ground that the Will dated 11.10.1976 is not a
valid and proper document. A reading of the judgment of the
first Court shows that the first Court felt that the Will in
question is not a genuine document for the reason that there
were a lot of suspicious circumstances surrounding the
execution of Will. The first Court took pains to explain and
enumerate what it felt were the suspicious circumstances that
were present in the Will.
11. Therefore, the essential question that falls for
consideration is whether the Ex.B.8-Will, dated 11.10.1976 is
a genuine and valid document or not and whether the first
Court was right in holding that there was number of
suspicious circumstances surrounding the same.
12. It is important to note that the Will was challenged
by the plaintiff-Smt. N.Gangamma by filing the suit O.S.No.587
of 1982. In the suit, she pleads that she filed the suit
O.S.No.1021 of 1980 which is renumbered as O.S.No.477 of
1983 and in that suit this Will dated 11.10.1976 was
produced. After seeing the contents of the Will, she challenges
the Will on the ground that a) the Will was not executed by
Rayalu Patel, b) he was bedridden since 1974 and was unable
the understand the nature of the transaction, c) that the
plaintiff and her husband were residing with the deceased-
Rayalu Patel in his residential house and if any Will was made,
they would have information of the same and their signatures
would have been obtained. For all these reasons, she pleads
that the Will is not a genuine document.
13. Evidence was recorded in O.S.No.476 of 1983 and
both the issues of the plaintiff being the daughter and the
validity of the Will are raised in evidence. The plaintiff examined
six witnesses. She did not, however, appear in the witness box.
PWs.1 to 6 were examined on her behalf. Exs.A.1 to A.13 were
marked on behalf of the plaintiff.
14. To disprove the case of plaintiff and to prove that
the Will was genuine, the second defendant was examined as
DW.1, first defendant was examined DW.2. DW.3 is the
Registrar of Assurances of the Government servant. DW.4 is
the Doctor, who medically examined the attestor and DW.5 is
the attestor of Ex.B.8-Will.
15. The Will in question was also put in a sealed cover
and was left with the Registrar of Assurances. The sealed cover
was opened in the open court.
16. These factors are being highlighted since the
essential for this Court to decide whether the finding of the first
Court on the question of suspicious circumstances is correct
or not. The learned counsel for appearing on behalf of the
appellants, who are the defendants in this suit, cited the
following judgments contending that the suspicious
circumstances pointed out by the first Court are not correct.
a) Rabindra Nath Mukherjee v. Panchanan Banerjee ,
b) Mahesh Kumar v. Vinod Kumar and
c) Pentakota Satyanarayana v. Pentakota Seetharatnam
17. In reply to this, learned counsel for the
respondent/plaintiff to support the finding of the first Court
cited a decision in Bharpur Singh and others v. Shamsher
Singh .
18. A reading of these judgments would make it clear
that a propounder of the Will has to prove that a) the Will was
validly executed by the testator in a sound and disposing state
of mind, b) the attestation of the Will was done as per law and
the attestation should also be proved by examining at least one
of the attestors and c) if there are suspicious circumstances
surrounding the Will, the person who urges that there are
suspicious circumstances will have to prove the same.
19. Against this backdrop, the evidence available in
this case should be discussed. It is pertinent to state here that
the plaint which is filed in O.S.NO.476 of 1983 raises only
three grounds and no other ground is urged to challenge the
Will. The Plaintiff, Smt.N. Gangamma states that a) the Will is
fradulent, b) the testator was bed ridden since 1974 and was
not in a sound state of mind and c) she and her husband were
the natural witnesses and should have signed the Will since
they were residing with the testator
(as mentioned in para-4 of the plaint in O.S.No.476 of 1983).
She did not raise any other grounds about the propounder of
the Will being party to the proceedings etc., as held by the first
Court. Nevertheless, as the issue was discussed by the first
Court at length, both the matters are being considered in this
appeal.
20. PW.1-N.V. Jagannathan is the husband of Smt.N.
Gangamma. He deposed as the General Power of Attorney
holder of the plaintiff. He deposes to the fact that he and his
wife resided with Railu Patel and that the testator was closely
connected with the plaintiff and her husband. He also states in
his cross-examination that defendants 1 to 6 in the said
O.S.No.476 of 1983 are the children of Balaiah, who is the
elder brother of Railu Patel. He deposes that he does not have
any differences with Railu Patel. He also states in page No.7 of
his cross examination that he has no record to show that Railu
Patel was ailing between 1974 to 1977. Therefore, it is clear
that the first ground urged that Railu Patel does not have a
good mental state of mind to execute the Will is not proved.
21. PW.2 is also not a party to the Will in any away.
PW.2 was a known acquaintance of the parties to the suit. He
also admits that the defendants in the suit are the children of
Balaiah. He admits that Ibrahim Khan-DW.5 is known to Railu
Patel. He admits in the cross examination in the last but one
line, which is as follows:
I do not know whether he wrote a Will or not.
22. PW.3-Gandamma, the sister of Mutthamma in her
chief examination speaks of the fact that Railu Patel and the
plaintiff lived together and Railu Patel has performed the
marriage with the plaintiff. The cross-examination of this
witness, is on the issues raised in the chief. Hence, there is
nothing about the Will in question. So is the case with PW.4.
PW.5 also speaks of the marriage of the plaintiff being
performed by Railu Patel. He also states that as he did not see
Railu Patel execute a Will; he stated that Railu Patel did not
execute a Will. PW.6 states that one Sankaraiah told him that
a Will was brought into existence by and on behalf of Railu
Patel. He also deposes that Sankaraiah told that the said Will
was produced before the District Registrar with Sankaraiah as
a witness. He states that after hearing his version of the
created Will, he went to the Sub-Registrars office and obtained
a certified copy of the Will. In the cross-examination, he admits
to the facts that he has no personal knowledge about the Will.
He admits that Sankaraiah had enmity with the plaintiff and
that he has seen the original Will in the Registrars office. It is
important to note that Sankaraiah is the second witness to the
Will and he is not alive. So not much credence can be given to
P.W.6 who deposes about what he was allegedly told by a
deceased person.
23. In contra distinction of this evidence, the
defendants have produced the Will and the evidence of six
witnesses.
24. As far as DW.1 is concerned, he deposes to the fact
that Railu Patel was in sound state of mind when he executed
the Will, that Railu Patel got the draft of the Will prepared and
he got himself examined by Dr. Jai Ramchander Pingle. He also
states that Railu Patel executed the Will of his own. He deposes
that Railu Patel went to the Sub-Registrars office and
deposited the Will in an original envelope, which was sealed.
The Will was marked as Ex.B.8 and the original envelope, in
which the Will was sealed, was marked as Ex.B.28. The sealed
cover bears the signatures and thumb impression of the
testator and the witnesses. Ex.B.9(a) is the signature of Railu
Patel and Ex.B.9(b) is his thumb impression. He deposes also
about the presence of the witnesses at the Registrars Office.
25. DW.3 is the Registrar who was working as the
Hyderabad District Registrar of Assurances between April
1976 to August 1990. He identified Ex.B.28 envelope and also
states that the contents written on the envelope that was
marked as Ex.B.28 (a) are in his handwriting. He deposes to
the fact that Railu Patel produced the original envelope before
him for keeping it in a sealed cover. He states that the testator
signed on Ex.B.28(a) in his presence and his signature was
marked as Ex.B.28 (b) and his thumb impression was marked
as Ex.B.28(c). Exs.B.29(a) and B.29(b) are the signature and
the thumb impression of the executor of the Will, which were
taken in his presence.
He identifies the signature and thumb impression of Railu
Patel (Ex.B.9(a) and 9(b) on the Will Ex.B.9). In the cross-
examination, he also identified MO.1 which is a seal that was
put on the envelope at the time of presentation of Ex.B.28-Will.
26. DW.4 was a Doctor, who examined the testator on
11.10.1976 and issued a medical certificate stating that Railu
Patel was in a good state of mind. He also identified Railu Patel
from a photograph (Ex.B.16). DW.5 is Ibrahim Khan, who
worked in the Municipal Corporation of Hyderabad.
He is the attestor to the Will. He clearly deposes in the chief
examination that he read the entire document, which was a
Will. He states that he saw Railu Patel, affix his signature and
thumb impression in his presence and that later he and
Sankaraiah also signed as attesting witnesses. He states that
Railu Patel placed it in an envelope and handed over it to the
Registering Officer. The Registering Officer took the signatures
and the thumb impression of this witness and other witnesses.
In the cross-examination, lot of emphasis was laid on the
marriage/relationships of Railu Patel. He admits in the cross-
examination that by the time he reached the house of Railu
Patel, the Will was already typed. He also states that defendant
No.1 was present in the office of the Sub-Registrar. He denies
the suggestion that Railu Patel was unable to read and
understand anything after 1974. He states that the Will was
presented between 12 noon and 1 p.m. on 11.08.1976. He
denied the suggestion that it is a forged and fabricated Will.
27. Against this background, the finding of the first
Court is examined. The finding of the first Court is essential
turning on the fact that the beneficiary of the Will (DW.1) has
actively participated in the process of execution of registration
of the Will. The learned Judge relied upon Gorantla Thataiah
v. Thotakura Venkata Subbaiah and others and held that
where the propounder of Will participates in making of the Will,
it is a suspicious circumstance. The case law since then has
undergone a sea change as can be seen in the later judgments
cited of the Honble Supreme Court by the learned counsel for
the appellants. The Supreme Court held that participation of
the beneficiary is not by itself a suspicious circumstance.
Equally in para-25 of the judgment in Pentakota
Satyanarayana,s case (3 stated supra), the Honble Supreme
Court held after considering all the decisions on the subject
that the active participation in the execution of the Will by the
beneficiary is not by itself a sufficient cause to disbelieve the
Will. The Supreme Court also held that in case the person
attesting the Will alleged undue influence, fraud or coercion,
the onus would be on him to prove the same. The Honble
Supreme Court in all these decisions held that mere presence
of the beneficiary is not a ground to hold that the Will is
suspicious.
28. The learned Judge of the first Court also held that
the contents of bequest are unnatural in the sense that the
property was bequeathed to the brothers children and that the
wives were given only a life estate etc. It is a fact that Railu
Patel did not have any children of his own. It is also apparent
from the record that the defendants (brothers children) were
also residing with Railu Patel and the exhibits like Ex.B.10 to
B.12 are showing the close connection between the defendants
and Railu Patel. Further, the two ladies living with him were
given a life estate. Considering the assets involved in this case
and giving a life estate by itself cannot be said to be an
unnatural bequest. The very concept of life estate for a
widow/wife is to ensure that she has a roof over ahead and
some income to lead a normal life till her death. If these
women were ignored it would be a different issue but the fact
that the two ladies were given a life estate indicates a thought
out Will.
29. The first Court also failed to realize that there is a
presumption under law albeit rebuttable that all official acts
are done properly (Section 114 of the Evidence Act). In this
case, it is clear that the Will dated 11.10.1976 was presented
to the Sub-Registrar to keep the same in a sealed cover.
The procedure stipulated under the Registration Act, more
particularly, Sections 42 to 45 of the Registration Act were
followed in this case. The Registrar accepted the Will in deposit
from the testator himself. The same can be seen from his
deposition. The Registrar (DW.3) was an official witness and
was not in any way connected with the family or that the Will
was examined as DW.3 and he clearly deposed as follows:
I worked as Hyderabad District Registrar of Assurances
from April 1976 to August 1980. Prior to that, I was
working in the office of Registrar of Assurances. I see
Ex.B.28-cover. The contents written on the envelope
marked as Ex.B.28 (a) are in my handwriting. The
executant named Railu Patel produced the original
envelope Ex.B.28 before me for keeping it in sealed cover.
Ex.B.28 (a) contains my signature. The executant signed
on Ex.B.28 (a) in my presence. The signature of
executant is Ex.B.28 (b). I also obtained thumb
impression of executant marked as Ex.B.28 (c) on the
said cover.. I see Ex.B.9(a) and B.9(b), which
are the thumb impression and signature of executant.
They were taken in my presence.
30. In the cross-examination, nothing was elicited
about these exhibits which are marked as Ex.B.28 (a) to (c).
The witness states in the cross-examination that he does not
have personal acquaintance with the execution of the Will. This
fact was highlighted by the first Court in the judgment and the
Court observed in para-10 of its judgment that DW.3 candidly
admitted that neither was he acquainted with Railu Patel nor
with DW.5 or with Sankaraiah. The finding of the first Court
overlooks the standard of proof that is required in a civil
Court. It is preponderance of probabilities that are relevant in
civil Courts and not proof beyond reasonable doubt.
31. It is a fact that every day many people appear for
registration of documents before the Registrar office and to
presume and to expect that the Registrar should have personal
acquaintance with every person to appear before him is
stretching things too far. The plaintiff was of the opinion that
Ex.B.8 is not genuine. There should have been cross-
examination on this matter, more so on Ex.B.28; Ex.B.28(a);
28(b); Ex.B.8 (a); 8(b) etc. There was no cross-examination on
vital aspects. The critical aspects which this witness deposes
are that Ex.B.28 cover contains his signature. He also deposes
that executant of the Will signed on Ex.B.28 in his presence.
Therefore, disowning testimony of this witness was not correct
in the eye of law.
The presumption under Section 114 of the Evidence Act is
squarely applicable in this case. The cross-examination or
other evidence does not in any way rebut this presumption.
32. Similarly, the comment made by the first Court
about the evidence of Doctor-DW.4 is also not correct. This
Doctor was examined as DW.4 to prove the certificate dated
11.10.1976, which is marked Ex.B.27. This certificate of the
Doctor clearly states that he examined the testator of the Will-
Railu Patel and that he found him to be in sound state of mind
and that he was in good mental condition to make his Will.
The first Court perfunctorily disowned the evidence of
this Doctor. The Doctor clearly deposed that he was practicing
medicine since 1972. He is an eminently qualified man holding
FRCS and MS degrees in Orthopedics. He admits that Railu
Patel has been his patient since 1975 with complaint of knees
problem. He clearly admits that on 11.10.1976 the said Railu
Patel was examined by him and that his mental condition was
quite normal and alert. In the cross-examination, nothing
much was elicited from the deposition to discredit this witness.
On the contrary, he denied the suggestion that Railu Patel, the
testator was ill and bedridden since 1971. He also clearly
states in his cross examination as follows:
I am not an expert on mental diseases, but any Doctor
can give a finding of mental state of a person.
The first Court simply said that the certificate given by this
Doctor does not support the case of DW.1. The first Court also
stated that DW.4 was not a witness to the execution of Ex.B.8.
The first Court lost track of the fact that this witness was
examined only to prove Ex.B.27 and not to prove the execution
of the Will. The mental state of the testator was proved through
this witness and this Court sees no reason to believe the
evidence of the Doctor.
33. Similarly, DW.5-Sri Ibrahim Khan was examined to
prove the attestation of the Will. As required by law at least
one attesting witness should be examined to prove the
execution of the Will. In this case, DW.5, who is working as
Vehicle Inspector of the Municipal Corporation of Hyderabad,
was examined as a witness. The witness deposes that he knew
Railu Patel due to the family relationship with him and his
family since the times of his father. He also deposes that the
family of Railu Patel also visited his house. The judgment of the
first Court discards the evidence of this witness on the ground
that the presence of DW.5 as an attesting witness is unnatural.
The Court notices his age states that at the time of execution of
Ex.B.28 he must have aged 34 years of age and therefore, he is
neither contemporary of Railu Patel nor does he has the special
relationship. Therefore, his evidence is disqualified.
34. The first Court failed to notice that there is no legal
requirement that a document should be attested only by a
relative or somebody near and dear. It is the prerogative of the
executant of the document to decide on the person who should
attest a document. It is not unknown that people often call an
uninterested third party as a witness to sign/attest documents.
This is to eliminate a challenge that interested parties was
shown as witness. Therefore, discrediting this witness merely
on the ground that he is young when compared to testator and
that the other relatives who were present at that time were not
considered as good attestors does not appear to be a correct
view and the learned Judge missed the fact that if interested
parties are taken as attestors or witnesses, it can lead to a
comment that they are not disinterested witness. Therefore,
the finding of the first Court that the presence of DW.5 is a
suspicious circumstance by itself is not truly correct.
35. The first Court failed to realize that the Will in this
case was deposited in October 1976 and that Railu Patel was
alive for two years thereafter and that he did not in any away
change the Will or cancel the Will till he died on 04.12.1978.
36. In Savithri and others v. Karthyayani Amma and
oathers the Honble Supreme Court of India also noticed
certain important features which are similar to the case on
hand. The testator in that case before the Supreme Court was
a) depending on his relatives to whom he bequeathed the
property b) the Will was registered and testator did not take
steps to change his mind or cancel the Will, c) the attestor/ the
second witness was examined to prove the Will as per the
provisions of the Evidence Act. The Supreme Court also
noticed that the appellant in that case stated that the signature
of the testator on the Will was obtained under influence or
coercion. Therefore, the Supreme Court held that onus was on
them to prove the case. It is settled law that requires no
reiteration that a person alleging a fact more so like undue
influence, coercion etc. should clearly plead and prove the
same.
37. In the case on hand, before the first Court, the
plaint merely stated in para-4 that a) the alleged Will is
fraudulent b) the testator was bedridden since 1974 and
unable to understand the transactions and c) the plaintiff and
her husband were residing in the same address and therefore,
they would have been naturally called as witness. All these
three grounds are not proved by the plaintiff. No medical
evidence was adduced to show that the testator was sick since
1974. It is not clear as to what is the fraud perpetrated as per
the pleadings. The reason for excluding the plaintiff and her
husband who is an M.L.A. was explained in page-3 of the Will
itself (translated copy). The plaintiff did not examine herself as
a witness. Necessarily, an adverse inference has to be drawn
against him. Even PW.1 did not depose anything to disprove
the contents of the Will, more so page-3 wherein the testator
gave reasons for not including the plaintiff and her husband in
the Will, which is evident from Ex.B.8-Will and the relevant
portion reads thus:
That I have nourished ;Smt. Gangamma, w/o. Sri
Jagannadham as my own daughter and I have performed
her marriage with my own expenses with my real
nephew. Sri Jagannadham, whose education and
training was done by me and at the time of the marriage.
I had borne the expenses of two sides but I ahd also given
wealth and ornament as per my capacity.
That after the marriage, I continued to have enough
relationship and behaviour with the husband and wife.
Now Sri Jagannadham is M.L.A. and by the grace of God
both these wife and husband are presently happy and
prosperous. Now they no longer need anything from me
in any manner whatsoever, as such there does not arise
any question of giving them any property under this Will
as they do not need any concession.
If this statement is not true; the plaintiff should have
contradicted the same in her plaint and in her evidence.
38. The Supreme Court clearly noticed that the burden
of proof that the Will has been validly executed and is a
genuine document is on the propounder. The propounder is
also required to prove that the testator has signed the Will and
that he had put his signature out of his own free will having a
sound disposition of mind and understood the nature and
effect thereof. If sufficient evidence in this behalf is brought on
record, the onus of the propounder is held to have been
discharged. The onus would be on the applicant to remove the
suspicion by leading sufficient and cogent evidence if there
exists any suspicious circumstances. Similarly, the Supreme
Court also took into consideration the case of H. Venkatachala
Iyengar v. B.N. Thimmajamma and others in para 17 and held
that the following are the suspicious circumstances:
(i) When a doubt is created in regard to the condition
of mind of the testator despite his signature on the
Will;
(ii) When the disposition appears to be unnatural or
wholly unfair in the light of the relevant
circumstances;
(iii) Where propounder himself takes prominent part in
the execution of Will which confers on him substantial
benefit.
39. In paras 18 & 19 of the said judgment, the
Supreme Court clearly held that a rational approach is to be
taken in cases of Will and also held that deprivation of a due
share by the natural heirs itself is not a factor which would
lead to the conclusion that there exist suspicious
circumstances. The Honble Supreme Court in the said
judgment in para-20 relied upon a judgment reported in
Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande
and held that the Will is executed to alter the mode of
succession. The fact that the natural heirs have been excluded
or the lesser share has been allotted to them is not a
suspicious circumstance per se. The Supreme Court also held
that if suspicious circumstances exist than a propounder of
the Will must remove the same.
40. In the case on hand, the pleadings do not lay any
foundation for the same. The evidence on record does not
prove any suspicious circumstances of the extent required to
disbelieve the Will. From all the above reasons, this Court is of
the opinion that the impugned order passed by the learned
single Judge is to be set aside, as he did not consider the
evidence on record or the pleadings of the document.
The impugned orders dated 27.04.2000 passed by the learned
single Judge in CCC Nos.14 of 1987 and 57 of 1986 are
hereby set aside.
41. It is held that Ex.B.28-Will executed is a genuine
document and the contents of the same have been proved as
required by law by examining the attestor. The deposit of the
same is supported by evidence of the Registrar and mental
state of the testator is proved by a medical certificate given by
DW.4. The attestor was examined as DW.5. Thus, all the
elements of law, as required to prove Ex.B.28-Will, are made
out. Consequently, the suit O.S.No.587 of 1982 is dismissed.
The finding of the single Judge of this Court that the parties are
residing in the property and that they are tenants in common
and therefore, the appeal is converted into one partition and
remanded to the Court below is also erroneous. In view of the
above, as Ex.B.28-Will has been held to be valid, the suit
O.S.No.587 of 1982 is dismissed.
42. Coming to O.S.No.477 of 1983, this suit is filed by
Smt. N. Gangamma for a declaration that she is the daughter of
late Railu Patel and that consequently, she is entitled to a
declaration that she is the owner of schedule A to D property
described in the suit plaint. The evidence on record does not
clearly show that the plaintiff is the daughter of late Railu Patel.
The learned single Judge noticed the fact that in a plaint, which
is marked as Ex.A.13, Smt. N.Gangamma, the plaintiff was
described as the daughter of late Railu Patel.
In contra distinction to this, the first Court noticed that Smt.
N.Gangamma did not enter into the witness box to prove her
case as plaintiff. The Honble Supreme Court of India in a
decision reported in Vidhyadhar v. Manikrao and another
clearly drew an adverse influence against the party who did not
enter the witness box to prove his/her case. The Honble
Supreme Court held as follows:
Where a party to the suit does not appear into the
witness box and states his own case on oath and does
not offer himself to be cross examined by the other
side, a presumption would arise that the case set up by
him is not correct.
43. While it is true that as per the provisions of
Evidence Act, the husband is a competent witness on behalf of
wife still when issues of paternity and declaration of rights are
sought to be established, it is expected that the plaintiff should
enter the witness box and depose about her status. The
veracity of her case would be tested by cross-examination. In
this case, admittedly the plaintiff was not examined as a
witness. Her husband cannot have any personal knowledge of
her paternity with certainty. Therefore, for all these reasons,
this Court holds that the findings of the first Court in
O.S.No.477 of 1983 are correct and similarly, the finding of the
single Judge of this Court on this aspect is also upheld. The
plaintiff is not entitled to a declaration that she is the daughter
of the Railu Patel. It is also pertinent to note that she is seeking
a declaration of her status to claim the suit schedule
properties. As the properties are admittedly self-acquired
properties and the Will dated 11.10.1976 by which they are
bequeathed to many is upheld, the declaration is not really
material anymore.
44. With the above observations and findings, the LPA
Nos.194 of 2000 and 14 of 2001 are disposed off. In the
circumstances of the case, each party should bear their own
costs. Miscellaneous Petitions, if any, pending in this appeal
shall stand closed.
_______________________
SURESH KUMAR KAIT, J
_________________________ D.V.S.S. SOMAYAJULU, J Date: 14.11.2017